Abdi Ali Aden v. Robert Wilkinson ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABDI ASIS ALI ADEN, No. 17-71313
Petitioner,
Agency No.
v. A208-307-454
ROBERT M. WILKINSON, Acting
Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 6, 2019 *
Portland, Oregon
Filed March 4, 2021
Before: Richard A. Paez and Johnnie B. Rawlinson,
Circuit Judges, and George H. Wu, ** District Judge.
Opinion by Judge Paez;
Concurrence by Judge Rawlinson
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable George H. Wu, United States District Judge for
the Central District of California, sitting by designation.
2 ADEN V. WILKINSON
SUMMARY ***
Immigration
Granting Abdi Ali Asis Aden’s petition for review of the
Board of Immigration Appeals’ dismissal of his appeal of an
Immigration Judge’s denial of his applications for asylum
and withholding of removal from Somalia, and remanding,
the panel held that the Board erred in concluding that Aden
did not qualify for an exception to the firm resettlement bar,
and that the evidence compelled the conclusion that he
suffered past persecution in Somalia on account of a
protected ground.
Aden asserted that he suffered persecution in Somalia by
members of Al-Shabaab, a militant terrorist organization
affiliated with Al-Qaeda and the Islamic State, after his
brother refused their orders to shut down his theater showing
American and Hindi movies and sports, which Al-Shabaab
viewed as “Satanic” movies. The Board concluded that
Aden was ineligible for asylum because he was firmly
resettled in South Africa, and that he failed to establish that
he suffered past persecution in Somalia on account of a
protected ground.
The Board noted that Aden presented “ample evidence”
of persecution in South Africa, but nonetheless determined
that he failed to qualify for the restricted-residence exception
to the firm resettlement bar because the persecution he faced
was at the hands of private individuals, rather than the South
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ADEN V. WILKINSON 3
African government. The panel concluded that the Board
erred in doing do, holding that the restricted-residence
exception applies when the country’s authorities are unable
or unwilling to protect the applicant from persecution by
nongovernment actors.
The panel held that the evidence compelled the
conclusion that Aden suffered past persecution in Somalia,
where in addition to physically beating Aden, members of
Al-Shabaab kept tabs on him by contacting his brother and
warned they would kill Aden and his brother if they
continued to disobey Al-Shabaab’s command to close their
theater. The panel wrote that the chain of events revealed
that Al-Shabaab intended to coerce Aden to submit to its new
political and religious order, and used offensive strategies—
beatings, destruction of property, and death threats—to
achieve this goal. Further, the panel explained that
continuing political and social turmoil caused by Al-
Shabaab provided context for the harm and death threats that
Aden experienced, which together with the past harm,
compelled the conclusion that he suffered past persecution
in Somalia.
The panel held that substantial evidence did not support
the Board’s determination that Aden failed to establish that
he was targeted on account of a protected ground because Al
Shabaab was motived by their own political and religious
beliefs, rather than Aden’s. The panel explained that Al-
Shabaab’s accusation that the brothers were featuring
Islamically forbidden, “Satanic” films provided direct
evidence of their political and religious motive, and that even
if the brothers did not feature the films out of their own
political or religious convictions, Al-Shabaab at the very
least imputed those beliefs to them. The panel wrote that the
only logical explanation for Al-Shabaab’s treatment of Aden
4 ADEN V. WILKINSON
and his brother was that their actions were subversive to Al-
Shabaab’s political and religious doctrine.
The panel remanded for the Board to consider, under the
appropriate framework, whether Aden was firmly resettled
in South Africa, and to give the government an opportunity
to rebut the presumption of future persecution triggered by
Aden’s showing of past persecution on account of a
protected ground.
Concurring, Judge Rawlinson agreed that the case
should be remanded for reconsideration of the firm
resettlement issue. Judge Rawlinson noted that despite the
fact that the IJ never addressed the issue of whether
persecution by private actors may prevent application of the
firm resettlement bar, the Board concluded that the firm
resettlement bar applied to Aden because he did not
introduce any evidence that the South African government
imposed any restrictions on his residency such that the
restricted-residence exception applied. Judge Rawlinson
wrote that the Board’s conclusion was not supported by
substantial evidence in the record, as reflected in the IJ’s
factual findings. Judge Rawlinson also agreed that the Board
erred in concluding that Aden failed to establish a nexus to a
protected ground because, based on binding precedent, an
applicant such as Aden, who disagrees with Al Shabaab’s
view of the proper interpretation of Islam, can establish
persecution on account of a protected ground by showing
that others in his group persecuted him because they found
him insufficiently loyal or authentic to the religious ideal
they espouse.
ADEN V. WILKINSON 5
COUNSEL
Emery El Habiby, El Habiby Law Firm, Sun City, Arizona,
for Petitioner.
Stephen J. Flynn, Assistant Director; Lynda A. Do,
Attorney; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
PAEZ, Circuit Judge:
Abdi Ali Asis Aden petitions for review of the Board of
Immigration Appeals’ (the “BIA” or “Board”) dismissal of
his appeal of an Immigration Judge’s (“IJ”) denial of his
applications for asylum and withholding of removal from
Somalia. Aden challenges the Board’s determination that he
firmly resettled in South Africa and did not experience
persecution in Somalia. We have jurisdiction under 8 U.S.C.
§ 1252. We grant the petition for review and remand.
I. Factual and Procedural Background 1
Aden is a native and citizen of Somalia. He was born in
Beledweyne, Somalia, and practices a form of Islamic
mysticism known as Sufism. He contends he suffered
persecution under Al-Shabaab, a militant terrorist
organization affiliated with Al-Qaeda and the Islamic State,
which took control of Beledweyne. The group maintained
1
The factual background is drawn from the IJ’s decision and Aden’s
credible testimony at his merits hearing.
6 ADEN V. WILKINSON
an active presence in the area surrounding Beledweyne and
much of southern Somalia.
After graduating high school, Aden began to work in a
nearby theater owned by his brother. The theater featured
American and Hindi movies and sports. On two occasions
in late 2010, members of Al-Shabaab visited the theater and
ordered Aden’s brother to shut down the theater and stop
screening, in their view, “Satanic” movies. Aden was not
present during these encounters, but his brother later told
him about them.
The brothers did not heed the instructions. A month
later, ten armed members of Al-Shabaab raided the theater
while Aden and his brother were working. For the next
twenty minutes, the armed men beat the theater employees
and patrons with sticks. After the patrons fled, the raiders
turned their attention to the remaining workers, including
Aden and his brother. They struck Aden in the head with the
butt of a rifle, causing him to bleed profusely. When they
left, they confiscated the equipment used to screen the
movies.
Immediately after the incident, Aden and his brother hid
in their uncle’s house in Beledweyne. Two weeks later,
members of Al-Shabaab contacted Aden’s brother and
warned him that if he reopened the theater, they would kill
both him and Aden. Aden and his brother did not reopen the
theater, deciding instead to hide at their uncle’s house until
they gathered enough money to escape Somalia.
In January 2011, Aden fled Somalia and, over the next
two months, made his way to South Africa. Upon his arrival,
he was granted asylum and given permission to work. He
worked and lived in a store owned by his cousin. To
ADEN V. WILKINSON 7
maintain legal status, he needed to renew his asylum
documentation several times.
Aden spent four difficult years in South Africa. He
testified about three incidents in which he was the target of
xenophobic attacks directed at Somali immigrants. In
December 2012, a group of anti-immigrant protestors
entered the store in which he worked, beat him with wooden
sticks and other tools, and broke and stole merchandise.
Once they finished ransacking, the protestors set fire to the
store, requiring it to be rebuilt.
The second incident occurred one night in March 2013.
Aden was sleeping inside the store with his cousin. He woke
up to a noise and found three to four men had broken into
the store. The intruders beat Aden and his cousin with
wooden sticks, forced them to lie on the ground, and stole
money and phone cards. During the incident, the men
accused Aden of being an “illegal alien” and told him he had
“no right to this business.” Aden reported the incident to
South African law enforcement, but they did nothing to
follow up or investigate.
The third and final incident took place in December
2014. While Aden was working, two men brandishing guns
went to the store and threatened to kill him. Aden gave them
money, phones, and phone cards. They told him, “you are
Somalis [and] [y]ou do not have rights to . . . this country,
and you don’t have . . . rights to enter.” Aden reported this
incident to the South African police but, again, they did
nothing to follow up or investigate.
As a result of these incidents, Aden fled yet again in
2015. He managed to travel to the United States, and upon
arriving at the San Ysidro port of entry he applied for
asylum, withholding of removal from Somalia and South
8 ADEN V. WILKINSON
Africa, and protection under the Convention Against
Torture.
The IJ denied Aden’s applications for relief and found
him removable as charged. Although the IJ found Aden
credible, he concluded that Aden was ineligible for asylum
because he had “firmly resettled” in South Africa. In
reaching this conclusion, the IJ first determined that Aden
had been offered permanent resettlement because he had no
difficulty finding work or a place to reside, received refugee
status and, after a certain amount of time, could have sought
a permanent immigration permit. Further, the IJ determined
Aden did not qualify for an exception to the firm-
resettlement bar because, in part, he did not show that the
conditions of his residence were too restricted for him to be
firmly resettled. In determining that Aden had firmly
resettled, the IJ did not discuss or consider Aden’s claims of
persecution as a Somali refugee by native South Africans. 2
The IJ alternatively determined that Aden was ineligible
for asylum in the United States because he did not establish
that, while in Somalia, he experienced past persecution or
that he had a well-founded fear of future persecution on
account of a protected ground. In reaching this
determination, the IJ reasoned that the “one-time” beating at
the theater did not amount to persecution, and, even if it did,
Aden failed to show it was on account of his religion or
political opinion. Further, the IJ concluded that because the
movie theater no longer existed in Somalia, Aden failed to
establish he had a well-founded fear of future persecution.
The IJ also found that Al-Shabaab remained a major force in
2
The IJ did, however, determine that Aden was entitled to
withholding of removal from South Africa on the basis of past
persecution, as discussed below.
ADEN V. WILKINSON 9
Somalia and a danger to many, including in the region Aden
is from, but ultimately concluded it was insufficient to
demonstrate Aden had a well-founded fear of persecution
because it amounted only to “general strife and violence in
Somalia.” Accordingly, the IJ denied Aden’s request for
withholding of removal from Somalia.
The IJ did, however, conclude that Aden was eligible for
withholding of removal from South Africa because the harm
Aden faced rose to the level of persecution. In making this
determination, the IJ pointed to the three xenophobic
incidents about which Aden testified, found that the
incidents occurred on account of his nationality as a Somali
immigrant, and determined that the South African
government was unable or unwilling to control such
violence. Last, the IJ determined that the government failed
to rebut the presumption of Aden’s well-founded fear of
persecution in South Africa by showing that he could
relocate internally or that the conditions there had changed.
Aden appealed the IJ’s decision to the BIA. The Board
agreed that Aden presented “ample evidence” that he
suffered persecution in South Africa, but nonetheless upheld
the IJ’s conclusion that Aden firmly resettled there. The
Board stated that Aden did not qualify for a firm-
resettlement exception because he was persecuted by
nongovernment actors. The Board also upheld the IJ’s ruling
that Aden was ineligible for asylum from Somalia because
he did not demonstrate past persecution or a well-founded
fear of future persecution on account of a protected ground.
In light of that conclusion, the Board also upheld the IJ’s
denial of Aden’s application for withholding of removal
from Somalia.
10 ADEN V. WILKINSON
Aden timely petitioned for review of the Board’s
determination that he firmly resettled in South Africa and
was not persecuted in Somalia.
II. Standard of Review
We examine the Board’s “legal conclusions de novo and
its factual findings for substantial evidence.” Arrey v. Barr,
916 F.3d 1149, 1157 (9th Cir. 2019) (citation omitted). A
factual finding is “not supported by substantial evidence
when any reasonable adjudicator would be compelled to
conclude to the contrary based on the evidence in the
record.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1059 (9th Cir. 2017) (en banc) (citation and quotation marks
omitted).
III. Firm Resettlement
An applicant who is firmly resettled is ineligible for
asylum. 8 U.S.C. § 1158(b)(2)(A)(vi). The IJ concluded,
and the Board agreed, that Aden did not qualify for asylum
because he had firmly resettled in South Africa and did not
meet an exception to the firm-resettlement bar. Aden argues
the Board erred in concluding he is not eligible for an
exception to the firm-resettlement bar. We agree.
To determine whether substantial evidence supports the
agency’s finding that an applicant has not firmly resettled in
a third country, we first determine whether the government
presented evidence that the applicant received an offer of
permanent resettlement. Arrey, 916 F.3d at 1159 (citing
Maharaj v. Gonzales, 450 F.3d 961, 976–77 (9th Cir. 2006)
(en banc)); 8 C.F.R. § 208.15. If the government establishes
that an applicant has firmly resettled, we then look to
whether the applicant qualifies for either of two exceptions
to the firm-resettlement bar. Arrey, 916 F.3d at 1159. One
ADEN V. WILKINSON 11
such exception—what we refer to as the “restricted-
residence exception”—applies when the applicant “show[s]
that . . . the conditions of [the applicant’s] residence [were]
too restricted[] for [the applicant] to be firmly resettled.” Id.
(quoting Maharaj, 450 F.3d at 976–77); 8 C.F.R.
§ 208.15(b). 3 The regulation provides that the restricted-
residence exception applies when the applicant shows that
the living restriction was (1) “substantial[],”
(2) “conscious[],” and (3) “by” the country’s authorities.
8 C.F.R. § 208.15(b). In making this determination, courts
consider the conditions under which other residents of the
country live, the type of housing offered to the applicant, and
the extent to which the applicant enjoyed privileges like
employment or education. See id.Aden argues he qualifies for the restricted-residence
exception to the firm-resettlement bar because the
persecution he suffered in South Africa sufficiently
restricted his living conditions. The IJ concluded that Aden
had been persecuted in South Africa because of his status as
a Somali immigrant and was thus entitled to withholding of
removal from South Africa. The Board likewise agreed that
Aden presented “ample evidence” of persecution in South
Africa, but nonetheless determined he failed to qualify for
the restricted-residence exception because the persecution
he faced was at the hands of private individuals, rather than
the South African government.
The key question here is thus whether the restricted-
residence exception applies when the country’s authorities
are unable or unwilling to protect the applicant from
3
The other recognized exception—whether the applicant remained
in the country “only as long as was necessary to arrange onward travel,”
§ 208.15(a)—is not at issue here.
12 ADEN V. WILKINSON
persecution by nongovernment actors. See 8 C.F.R.
§ 208.15(b). We conclude it does, and the Board legally
erred in deciding otherwise.
First, there is no doubt that persecution is a
“substantial[]” restriction of one’s residence. See Arrey,
916 F.3d at 1159–60; Siong v. INS, 376 F.3d 1030, 1040 (9th
Cir. 2004); E. Bay Sanctuary Covenant v. Barr, 964 F.3d
832, 847 (9th Cir. 2020). As we have recognized, the firm-
resettlement bar ensures that “if [the United States] denies a
refugee asylum, the refugee will not be forced to return to a
land where he would once again become a victim of harm or
persecution.” E. Bay Sanctuary Covenant, 964 F.3d at 847
(quoting Andriasian v. INS, 180 F.3d 1033, 1046–47 (9th
Cir. 1999)). Such an outcome, we have explained, “would
totally undermine the humanitarian policy underlying the
regulation.” Id. (quoting Andriasian, 180 F.3d at 1046–47).
Indeed, “[t]he regulatory definition of firm resettlement
captures the oft-repeated understanding that asylum is not
granted to aliens who have found a haven from persecution.”
Siong, 376 F.3d at 1040 (quoting Ali v. Reno, 237 F.3d 591,
595 (6th Cir. 2001)).
Second, a restriction is “conscious[]” if the persecutors
act knowingly. 4 No one contests—either here or before the
agency—that Aden’s persecutors acted knowingly.
The only remaining issue is thus whether a government’s
failure or unwillingness to protect a person from private
persecution is a restriction “by” the country’s authorities.
4
To be “conscious” means simply to “hav[e] awareness” or
“knowledge.” Conscious, Oxford English Dictionary (3d ed. 2011),
https://www.oed.com/view/Entry/39475?redirectedFrom=conscious&
(last visited Dec. 4, 2020).
ADEN V. WILKINSON 13
Our precedent recognizes that it is. In Siong, we evaluated
the BIA’s denial of an asylum applicant’s motion to reopen
his case on the ground that he had received ineffective
assistance of counsel in his removal proceeding. 376 F.3d at1036–42. Part of that inquiry required the court to determine
whether the petitioner had demonstrated prejudice, which, in
turn, required a further determination of whether he had
alleged a “plausible” ground for relief. Id. at 1037–42. The
IJ concluded, and the Board agreed, that the petitioner had
firmly resettled in France. Id. at 1038.
The petitioner argued that he qualified for the restricted-
residence exception to the firm-resettlement bar because of
persecution he suffered in France. Although the persecutors
were private actors, rather than government officials, we
concluded the petitioner had established “at least a plausible
claim” that he had not firmly resettled in France. Id. at 1140.
In reaching that conclusion, we relied on the straightforward
principle that “firmly resettled aliens are by definition no
longer subject to persecution.” Id. (quoting Yang v. INS,
79 F.3d 932, 939 (9th Cir. 1996)).
We applied the same principle in Arrey. The petitioner
in that case, a Cameroonian woman, had fled her home
country to escape domestic violence and relocated to South
Africa, where she received refugee status. 916 F.3d at 1154–
55. In South Africa, however, the petitioner was robbed and
stabbed, and her brother, also a South Africa resident, was
shot and killed. Id. at 1155. The petitioner eventually fled
to the United States and applied for asylum. Id. The IJ
denied her application, in part, on the ground that she had
firmly resettled in South Africa, and the Board agreed. Id.
at 1155–57.
On appeal, we concluded the Board erred in applying the
firm-resettlement bar. Although the Board conducted the
14 ADEN V. WILKINSON
first step of the inquiry (whether the petitioner received an
offer of permanent settlement), we concluded it erred by
declining to conduct the second step (whether she qualified
for an exception to the bar because she suffered persecution
in South Africa). Id. at 1159. We explained the Board
should have considered incidents alleging past persecution
by nongovernmental actors, because “[t]hat evidence could
rebut the finding of firm resettlement.” Id. at 1159–60. We
did not hesitate to reach this conclusion even though the
alleged persecutors were nongovernment actors. See id.
Once again, in reaching this conclusion, we relied on the
well-established credendum that “firmly resettled aliens are
by definition no longer subject to persecution.” Id. at 1159–
60 (quoting Yang, 79 F.3d at 939). We thus remanded to
afford the Board an opportunity to conduct fully its firm-
resettlement analysis in light of the petitioner’s allegations
of past persecution. Id. at 1160.
Given this precedent, we reaffirm that a government’s
failure to address persecution, despite knowing about it,
constitutes a restriction of one’s living conditions “by” the
country’s authorities. See § 208.15(b); Arrey, 916 F.3d at
1160; Siong, 376 F.3d at 1040; Yang, 79 F.3d at 939. 5 We
5
This approach also comports with 8 C.F.R. § 208.15(b)’s
requirement that courts consider the applicant’s living conditions relative
to those of “other residents”—a determination that necessarily requires
consideration of what conditions the applicant does not enjoy. The same
approach applies to other required considerations, such as determining
what kind of housing or employment was “made available” to the
refugee; these inquiries necessarily require a consideration of the
housing and employment not made available to the refugee. Each
example of what was not done or what was not made available—despite
being examples of a government’s failure to act, rather than an
affirmative act—would still constitute a restriction on living “by” a
country’s authorities.
ADEN V. WILKINSON 15
reach the same conclusion even when the persecutors are
nongovernment actors, so long as the applicant also shows
that the country’s authorities were unable or unwilling to
stop the persecution. Any other conclusion would be
irreconcilable with the regulation’s plain text and our
precedent.
Thus, the Board erred by concluding that Aden did not
qualify for a firm-resettlement exception because the
persecution he suffered was perpetrated by nongovernment
actors. On remand the Board should consider—now with
the appropriate legal framework—whether he was firmly
resettled in South Africa. 6
IV. Asylum from Somalia
We next address the Board’s conclusion that Aden did
not suffer persecution in Somalia. “[T]o establish eligibility
for asylum on the basis of past persecution, an applicant
must show: (1) an incident, or incidents, that rise to the level
of persecution; (2) that is ‘on account of’ one of the
statutorily-protected grounds; and (3) is committed by the
government or forces the government is either ‘unable or
unwilling’ to control.” Chand v. INS, 222 F.3d 1066, 1073
(9th Cir. 2000) (quoting Navas v. INS, 217 F.3d 646, 655–
56 (9th Cir. 2000)). “We will reverse the BIA’s decision that
an applicant is ineligible for asylum only if ‘a reasonable
fact-finder would have to conclude that the requisite fear of
persecution existed.’” Id. (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)).
6
In light of the BIA’s affirmance of the IJ’s finding that Aden was
persecuted in South Africa, however, it would seem illogical for the
Board to conclude that Aden was firmly resettled.
16 ADEN V. WILKINSON
A. Incidents Rising to Persecution
We define persecution as “the infliction of suffering or
harm upon those who differ (in race, religion or political
opinion) in a way regarded as offensive.” Ghaly v. INS,
58 F.3d 1425, 1431 (9th Cir. 1995) (quoting Prasad v. INS,
47 F.3d 336, 339 (9th Cir. 1995)). Persecution is an
“extreme concept that does not include every sort of
treatment our society regards as offensive.” Id. (citation
omitted). “The key question is whether, looking at the
cumulative effect of all the incidents a petitioner has
suffered, the treatment she received rises to the level of
persecution.” Korablina v. INS, 158 F.3d 1038, 1044 (9th
Cir. 1998).
We have consistently held that “[p]hysical harm has . . .
been treated as persecution.” Chand, 222 F.3d at 1073;
accord Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009)
(recognizing it is well-established that physical violence
constitutes persecution). At the same time, we have
recognized that a one-off physical beating did not compel a
finding of persecution, even if, in our independent view, a
reasonable factfinder could conclude such a beating rose to
the level of persecution. See, e.g., Prasad v. INS, 47 F.3d
336, 339–40 (9th Cir. 1995); Gu v. Gonzales, 454 F.3d 1014,
1020 (9th Cir. 2006). Nonetheless, when the incidents have
involved physical harm plus something more, such as
credible death threats, we have not hesitated to conclude that
the petitioner suffered persecution. See Smolniakova v.
Gonzales, 422 F.3d 1037, 1049 (9th Cir. 2005) (“Repeated
death threats, especially when those threats occurred in
conjunction with other forms of abuse, require a finding of
past persecution.”); Duarte de Guinac v. INS, 179 F.3d 1156,
1162 (9th Cir. 1999) (“No case or statute provides that
physical harm and death threats [do not rise to the level of]
ADEN V. WILKINSON 17
persecution—quite the contrary.”); see also Borja v. INS,
175 F.3d 732, 736–37 (9th Cir. 1999) (en banc) (concluding
that record compelled finding of past persecution where
petitioner suffered injury and death threat), superseded by
statute on other grounds as stated in Parussimova v.
Mukasey, 555 F.3d 734, 739–40 (9th Cir. 2009); Sangha v.
INS, 103 F.3d 1482, 1487 (9th Cir. 1997) (recognizing that
death threats were sufficient to establish persecution).
“What matters,” in assessing the sufficiency of the threat to
establish persecution, “is whether the group making the
threat has the will or the ability to carry it out”—not whether
it is, in fact, carried out. Kaiser v. Ashcroft, 390 F.3d 653,
658–59 (9th Cir. 2004) (quoting Bolanos-Hernandez v. INS,
767 F.2d 1277, 1285 (9th Cir. 1984)). Another important
consideration is whether the threat leaves the person with no
realistic choice but to conform to the persecutor’s way of life
and forsake other political or religious beliefs, or flee. See
Kantoni v. Gonzales, 461 F.3d 894, 898 (7th Cir. 2006) (“A
credible threat that causes a person to abandon lawful
political or religious associations or beliefs is persecution.”).
Last, we have held that an asylum applicant’s claim of
persecution is further strengthened when evidence that the
applicant was physically beaten and threatened with his life
is presented in conjunction with evidence of the country’s
“political and social turmoil.” Korablina, 158 F.3d at 1045;
see also Kaiser, 390 F.3d at 658 (“Threats on one’s life,
within a context of political and social turmoil or violence,
have long been held sufficient to satisfy a petitioner’s burden
of showing an objective basis for fear of persecution.”).
Importantly, “[e]ven if a single incident does not rise to the
level of persecution, the cumulative effect of these several
incidents constitutes persecution.” Smolniakova, 422 F.3d
at 1049.
18 ADEN V. WILKINSON
Here, the IJ determined, and the Board agreed, that Aden
had not suffered persecution in Somalia because he
presented only evidence of a “one-time incident” involving
a physical beating while working at his brother’s theater.
The Board further concluded—wrongly—that Aden’s
brother received threats after the raid on the theater, but
Aden did not.
These determinations were not supported by substantial
evidence, and Aden presented sufficient evidence to compel
the conclusion that he suffered persecution at the hands of
Al-Shabaab. Ten members of Al-Shabaab raided the theater
that he and his brother operated, physically beat Aden, and
cudgeled him on the head with the butt of a rifle, causing him
to bleed profusely. Al-Shabaab also stole theater equipment,
ensuring the theater would remain closed. To hide from Al-
Shabaab, Aden and his brother moved to their uncle’s home,
where they made plans to flee the country. Two weeks after
the raid, Aden’s brother received a phone call threatening
him that if they reopened the theater, both he and Aden
would be killed—not just Aden’s brother, as the Board
found. Aden and his brother did not reopen the theater,
remained in hiding, and fled Somalia two months later.
Although a one-off, minor physical assault followed by
a life of unrestrained religious practice or political
expression may not compel the conclusion that a person has
suffered persecution, see Prasad, 47 F.3d at 339–40; Gu,
454 F.3d at 1020, Aden has presented a far more compelling
case. In addition to physically beating Aden, members of
Al-Shabaab kept tabs on him by contacting his brother and
warned they would kill Aden and his brother if they
continued to disobey Al-Shabaab’s command. See Kaiser,
390 F.3d at 658; Duarte de Guinac, 179 F.3d at 1162; Borja,
ADEN V. WILKINSON 19
175 F.3d at 736–37; Sangha, 103 F.3d at 1487. 7 Unlike
situations where the government evinced no lingering
interest in the victim, the record evidence here shows that
members of Al-Shabaab kept a close eye on Aden, his
brother, and their political and religious activities. The death
threat further left Aden with the “bleak choice” of remaining
steadfast in his way of life (and risking death) or succumbing
to Al-Shabaab’s demand for conformity. See Kantoni,
461 F.3d at 897–98. Such a chain of events reveals that Al-
Shabaab intended to coerce Aden to submit to its new
political and religious order, and used offensive strategies—
beatings, destruction of property, and death threats—to
achieve this goal.
Further, as the IJ recognized, Aden presented evidence
that Somalia continued to experience political and social
turmoil, given that Al-Shabaab “remains a major force in the
country, and a danger to many, including in . . . [the region
Aden is from].” 8 See Korablina, 158 F.3d at 1045. This
7
The Board mistakenly relied on Hoxha v. Ashcroft, 319 F.3d 1179(9th Cir. 2003), in affirming the IJ’s denial of Aden’s asylum claim.
There, unlike here, the applicant was subjected to a lifetime of unfulfilled
threats by various Serbs and then suffered a one-time beating that was
“not connected with any particular threat.” Id. at 1182.
8
See, e.g., Human Rights Watch World Report (2016)
(“Government forces failed to protect civilians, including journalists,
clan elders, clerics and lawmakers and other officials from targeted
killings by Al-Shabab as well as by unknown gunmen, primarily in
Mogadishu, Baidoa, the capital of the Bay region, and Beletweyn, the
capital of Hiraan.”); Human Rights Watch, UN Human Rights Council:
Interactive Dialogue with the Independent Expert on the situation in
Somalia (Sept. 30, 2015), https://www.hrw.org/news/2015/09/30/un-
human-rights-council-interactive-dialogue-independent-expert-situation
-somalia (“This year has seen massive civilian displacement as well as
20 ADEN V. WILKINSON
additional evidence provides the context for the harm and
death threats that Aden experienced at the hands of Al-
Shabaab. Together, this evidence compels the conclusion
that Aden suffered persecution while in Somalia.
B. Nexus
To prevail on an asylum claim, an applicant must also
demonstrate that the persecution was “on account of” a
statutorily protected ground. Parussimova, 555 F.3d at 739.
To meet this “nexus” requirement, an applicant must show
that the protected ground was “at least one central reason”
the applicant was persecuted. 8 U.S.C. § 1158(b)(1)(B)(i).
“[A] motive is a ‘central reason’ if the persecutor would not
have harmed the applicant if such motive did not exist.”
Parussimova, 555 F.3d at 741. Motive can be established by
a persecutor’s statements to the victim. See Lopez v.
Ashcroft, 366 F.3d 799, 804 (9th Cir. 2004). The motive
may also be inferred if the factual circumstances alone
demonstrate “no other logical reason for the persecution at
issue.” Navas, 217 F.3d at 657. Further, “[i]f the persecutor
attributed a political opinion to the victim, and acted upon
the attribution, this imputed view becomes the applicant’s
political opinion.” Xinbing Song v. Sessions, 882 F.3d 837,
841 (9th Cir. 2017) (quoting Sangha, 103 F.3d at 1489). In
a similar vein, we have held that a person who is persecuted
in response to the person’s “resistance to discriminatory
government action . . . is persecution on account of a
protected ground.” Chand, 222 F.3d at 1077; see also Desir
v. Ilchert, 840 F.2d 723, 727–28 (9th Cir. 1988) (recognizing
that, although a requirement to pay money to quasi-
governmental forces may not on its own amount to
civilian casualties from targeted and indiscriminate attacks. Al-Shabab
militants continue to target civilians.”).
ADEN V. WILKINSON 21
persecution, punishment for refusing to pay amounts to
persecution on account of a protected ground).
The IJ determined, and the Board agreed, that the attack
on Aden was not “on account of” Aden’s political opinion or
religious beliefs because Al-Shabaab was motivated out of
its political and religious beliefs, not Aden’s. Substantial
evidence does not support this determination. Members of
Al-Shabaab twice contacted Aden’s brother and ordered him
to stop showing American and Hindi films because, in their
view, such films were “Satanic” and forbidden in Islam.
When Aden and his brother ignored that instruction, Al-
Shabaab raided the theater, beat them, and later threatened
to kill them if they reopened it. Al-Shabaab’s accusation that
the brothers were featuring Islamically forbidden, “Satanic”
films provides direct evidence of their political and religious
motives. See Lopez, 366 F.3d at 804 (finding that
Guatemalan guerillas’ statement to petitioner that he should
not work for the wealthy provided direct proof of motive).
Further, even if the brothers did not feature the films out
of their own political or religious convictions, Al-Shabaab at
the very least imputed those beliefs to them. See Xinbing
Song, 882 F.3d at 841–42 (explaining that government
accusation that petitioner was “anti-government” was
sufficient to show the officials imputed a political opinion to
the applicant). Thus, the only logical explanation for Al-
Shabaab’s treatment of Aden and his brother was that their
actions were subversive to Al-Shabaab’s political and
religious doctrine. See id.; see also Chand, 222 F.3d at 1077;
Desir, 840 F.2d at 727–28.
In reaching the opposite conclusion, the Board cited the
Supreme Court’s decision in Elias-Zacarias. This reliance
was misplaced. There, the Court considered only whether a
guerrilla organization’s forcible conscription policy
22 ADEN V. WILKINSON
constituted per se persecution “on account of” political
opinion. 502 U.S. at 479. The Court held it did not. Id.
at 484. In doing so, the Court reasoned that a person might
refuse to join a guerilla movement “for a variety of
reasons”—even if they supported the movement—such as
“fear of combat, a desire to remain with one’s family and
friends, [or] a desire to earn a better living in civilian life.”
Id. at 482. The Court further rejected the theory that the
guerrillas’ political motives could satisfy the nexus
requirement because, the Court explained, the persecution
must be “on account of the victim’s political opinion, not the
persecutor’s.” Id. at 482. Importantly—and unlike here—
the asylum applicant was not punished for refusing to join or
otherwise engaged in actions perceived as subversive. Elias-
Zacarias thus does not apply.
Because the record evidence would compel any
reasonable factfinder to conclude that Aden suffered
persecution on account of a protected ground, we grant the
petition on this basis.
C. Well-founded Fear
Because Aden has shown that he suffered past
persecution, he enjoys a presumption that if he returns to
Somalia, he will be persecuted in the future. See 8 C.F.R.
§§ 208.13(b)(1)(i), (ii); Chand, 222 F.3d at 1078.
“[B]ecause neither the IJ nor the BIA found that the harm
[Aden] suffered rose to the level of persecution, they did not
accord [Aden] the presumption, and therefore did not
consider whether changed conditions in [Somalia] were
sufficient to rebut it.” See Chand, 222 F.3d at 1078. We
thus remand to allow the government an opportunity to rebut
the presumption by showing changed country conditions.
See INS v. Orlando Ventura, 537 U.S. 12, 16–18 (2002) (per
curiam).
ADEN V. WILKINSON 23
V. Withholding of Removal from Somalia
To be eligible for withholding of removal, an applicant
must show that the evidence in the record demonstrates a
“clear probability of persecution.” Korablina, 158 F.3d
at 1045. A clear probability exists if it is “more likely than
not” the person will be persecuted upon return. Id. at 1046
(citing Cardoza-Fonseca v. INS, 767 F.2d 1448, 1452 (9th
Cir. 1985) and 8 C.F.R. § 208.16(b)(1)). “A finding of past
persecution triggers a regulatory presumption that the
applicant’s ‘life or freedom would be threatened if
deported.’” Id. (quoting Vallecillo-Castillo v. INS, 121 F.3d
1237, 1240 (9th Cir. 1996)). To rebut this presumption, the
government must show by a preponderance of the evidence
that country conditions have so changed that it is no longer
likely that the applicant would be persecuted there. See
Vallecillo-Castillo, 121 F.3d at 1240.
Because Aden showed that he suffered past persecution,
he was entitled to a presumption that his “life or freedom
would be threatened if deported.” See id. (citation and
quotation marks omitted). We thus remand to the Board to
address this claim. See Orlando Ventura, 537 U.S. at 16–18.
VI. Conclusion
For the above reasons, we grant Aden’s petition and
remand for further proceedings consistent with this opinion.
GRANTED and REMANDED.
24 ADEN V. WILKINSON
RAWLINSON, Circuit Judge, concurring:
I concur in the conclusion that this case should be
remanded for reconsideration of the firm resettlement issue.
I also agree that the Immigration Judge (IJ) failed to address
in the context of firm resettlement the persecution
experienced by Petitioner Abdi Asis Ali Aden (Aden) in
South Africa.
The firm resettlement bar prevents the grant of asylum to
an applicant who has firmly resettled in a different country
before arriving in the United States. See Nahrvani v.
Gonzales, 399 F.3d 1148, 1151 (9th Cir. 2005). The
governing regulation at the relevant time period provided:
An alien is considered to be firmly resettled
if, prior to arrival in the United States, he or
she entered into another country with, or
while in that country received, an offer of
permanent resident status, citizenship, or
some other type of permanent resettlement
unless he or she establishes:
(a) That his or her entry into that country was
a necessary consequence of his or her flight
from persecution, that he or she remained in
that country only as long as was necessary to
arrange onward travel, and that he or she did
not establish significant ties in that country;
or
(b) That the conditions of his or her residence
in that country were so substantially and
consciously restricted by the authority of the
ADEN V. WILKINSON 25
country of refuge that he or she was not in
fact resettled. . . .
8 C.F.R. § 1208.15 (2019).
Although not addressed in the context of firm
resettlement, the IJ made the following detailed findings
regarding the persecution endured by Aden in South Africa:
[Aden] testified that he worked as a
shopkeeper in his cousin’s store. . . . The
first time [he] experienced problems in South
Africa was in December 2012. On that day,
. . . many people who were protesting
immigrants in South Africa came to the
store. . . . The protesters were angry at
Somalis . . . and other immigrants that lived
in South Africa. [Aden] tried to stop the
protesters from taking things from the store
and was injured in the process. He was
beaten with wood sticks, but was able to flee.
The protesters then lit the store on fire and the
store had to be rebuilt. . . .
[Aden] testified that in March 2013, late
at night, [he] was asleep in the store and heard
a noise. When [he] went to see what had
caused the noise he saw 3–4 men inside the
store. The men began to beat [Aden] and the
other man there . . . with wooden sticks. . . .
The men said to [Aden], “you guys are illegal
aliens, you guys have no rights, and you have
no rights to this business. . . .” [Aden] and
his cousin reported the incident to the South
African police. . . . But the South African
26 ADEN V. WILKINSON
police did not do anything to investigate after
the report was filed.
...
[Aden] testified that in December 2014,
while [he] was working at the store, two men
“who were thieves” came into the store with
guns. They pushed the other worker on the
ground and threatened to kill [Aden]. . . .
The men said to [Aden], “you are the Somalis
and you do not have rights in this country.”
[Aden] reported the incident to the South
African police. . . . However, he never heard
anything else from the police.
The IJ found Aden to be a credible witness. The IJ also
acknowledged that Aden “submitted country conditions
evidence corroborating . . . anti-immigration sentiment and
violence in South Africa.” Finally, the IJ noted that:
[w]hile the government states it is opposed to
such anti-immigrant, anti-Somali violence, it
is unable to stop it, and at times [has] gone so
far as to deny that the attacks were anything
other than general criminal behavior. . . .
Members of the government, along with
other South African leaders, have also made
statements that appear to fuel the resentment
and lead to more violence.
The Board of Immigration Appeals (BIA) adopted the
IJ’s finding that Aden was credible, and found no clear error
in the IJ’s other factual findings. Despite the fact that the IJ
never addressed the issue of whether persecution by private
actors may prevent application of the firm resettlement bar,
ADEN V. WILKINSON 27
the BIA concluded that the firm resettlement bar applied to
Aden because he “did not introduce any evidence that the
South African government imposed any restrictions on his
residency such that the exception in 8 C.F.R. § 1208.15(b)
precluded him from being firmly resettled.” However, this
conclusion is not supported by substantial evidence in the
record, as reflected in the IJ’s factual findings. See Maharaj
v. Gonzales, 450 F.3d 961, 967 (9th Cir. 2006) (en banc)
(noting that we review a firm resettlement determination for
substantial evidence). As discussed, the IJ found that not
only did the South African police fail to investigate the
xenophobic attacks against Somalis in South Africa, the
South African government made statements that ostensibly
“fuel[ed] the resentment,” leading to additional violence.
These facts were sufficient to support a claim that Aden’s
residence in South Africa was “substantially and consciously
restricted by the authority of” South Africa such that Aden
was never firmly resettled in South Africa. 8 C.F.R.
§ 1208.15 (2019). Therefore, I agree with the majority that
this case should be remanded for the IJ to apply his findings
to the provisions of the regulation governing the resettlement
bar.
I also concur in the majority’s conclusion rejecting the
IJ’s and BIA’s determination that Aden failed to establish a
nexus to a protected ground for the attacks in Somalia. The
IJ described Aden’s testimony that he and his brother began
having problems with Al-Shabab, a terrorist organization
that seeks to “enforce its interpretation of Islam.” Aden
shares the Muslim religion with Al-Shabab, but disagrees
with its view of the proper interpretation of Islam. Aden’s
problems with Al-Shabab stemmed from his brother’s
operation of a movie theater showing “American and Hindi
movies and sports.” Al-Shabab objected to the showing of
these movies, because they “promoted sinful ideas such as
28 ADEN V. WILKINSON
showing women who were not fully covered.” We have
concluded that “[i]f an applicant can establish that others in
his group persecuted him because they found him
insufficiently loyal or authentic to the religious . . . ideal they
espouse, he has shown persecution on account of a protected
ground.” Maini v. I.N.S., 212 F.3d 1167, 1175 (9th Cir.
2000). Because of this binding precedent, I agree with the
majority that the opposite conclusion reached by the IJ and
BIA is not supported by substantial evidence.